European Union (Withdrawal Agreement) Bill

Report (1st Day)

Clause 7: Rights related to residence: application deadline and temporary protection

Amendment 1

1: Clause 7, leave out Clause 7 and insert the following new Clause— “Rights related to residence (1) The Secretary of State must by regulations make provision implementing—(a) Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document),(b) Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document), and(c) Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document),including making provision for a physical document providing proof of residence.(2) Subsection (1) applies in the same way to—(a) persons within the personal scope of the withdrawal agreement having the right to reside in the United Kingdom, and(b) persons to whom the provisions in paragraph (a) do not apply but who are eligible for—(i) indefinite leave to enter or remain, or(ii) limited leave to enter or remain,by virtue of residence scheme immigration rules (see section 17).”Member’s explanatory statement This amendment removes the Bill’s references to a constitutive system and instead makes clear it will implement the Withdrawal Agreement via a declaratory registration system that ensures EU citizens can receive a physical document to prove their right of residence in the UK.

My Lords, Amendment 1 is in my name and those of the noble Lords, Lord Warner, Lord Kerslake and Lord McNicol of West Kilbride. It seeks to achieve two things. First, it would provide citizens covered by the settled status scheme with a right to a physical form of proof of status; at present, only a digital proof is available. Secondly, it would shift the settled status scheme from a constitutive application scheme to a declaratory basis, meaning that rights were based on eligibility and not forfeit as a result of not meeting an arbitrary deadline.

I want to be clear at the outset. This amendment is not a partisan matter. It is not in any way an attempt to challenge Brexit, frustrate this Bill or change the substance of the rights established under the settled status scheme and in the withdrawal agreement. It simply seeks to ensure that the scheme will work effectively; that a plethora of problems that will, on the current basis, be encountered inevitably by the Government and EU citizens after the registration cut-off period are avoided; and that EU citizens have the option to have physical proof of their status should they wish it.

As noble Lords will recall, in June 2016, the current Prime Minister, Boris Johnson, the current Home Secretary, Priti Patel, and the current Chancellor of the Duchy of Lancaster, Michael Gove, made the following, unequivocal statement:

“there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”

Sadly, although a great deal of progress has been made with the settled status scheme, these commitments have not been honoured.

First, the settled status scheme is not the automatic route to indefinite leave to remain that was promised. It is an application-based system with a finite cut-off date of 30 June 2021. The only thing automatic about it is that after midnight on that date, any person who has not applied will be criminalised—deemed to be unlawfully in the United Kingdom, whether or not they would otherwise have been eligible for permanent residence under the scheme—and subject to deportation. We know that despite its best efforts the Home Office will inevitably not be able to reach, and grant settled status to, every one of the 3.6 million-plus eligible EEA and Swiss citizens resident in the UK. As a result, possibly tens of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.

The amendment does not seek to change the settled status scheme; it seeks to build on it and improve it. It would protect the Government from the severe difficulties that would otherwise occur after the registration cut-off date by establishing a declaratory system which protected the rights of those eligible under the scheme after that date and alleviate the practical difficulties that EEA and Swiss nationals would otherwise face by providing for physical documentation alongside the digital register, just as is the case for any non-EEA citizens who receive indefinite leave to remain in this country.

This is not a debate about technicalities, constitutional principles or partisan differences; it is a debate about people’s lives, about the deep and genuine concerns of EU citizens about the scheme as it currently operates, about their confidence that they will be able to travel to and from the country that they have made their home without let or hindrance, and about whether their interactions with landlords, airline staff and others who are required to comply with the immigration system become fraught with difficulty and whether they will face discrimination as a consequence of being treated differently from other permanent residents in this country. It is also about whether the rights of the most vulnerable of those EU citizens remain protected after June 2021.

It is in the hands of the Government to allay such concerns by accepting this amendment. I appeal to them to do so, to try to walk a little in the shoes of those subject to the scheme who have indicated their deep concerns and, in doing so, to show some flexibility and good sense. I beg to move.

My Lords, I support the amendment, to which I have added my name. I want to make just a couple of points in support of the very elegant speech made by the noble Lord, Lord Oates.

This is also a matter of government competence. We made it clear in Committee that there were doubts in all parts of the House about whether people going about their business who were legitimately here and had been given leave to remain and settle here would face challenges to that right on a regular basis. That was because there was no guarantee that they would have some physical manifestation to demonstrate to people whom they had to convince that they were indeed entitled to be here. We cited many of the circumstances; the noble Lord, Lord Oates, cited more today. There are landlords; there are schools; there are GPs; there are airlines; there are many things which we all take it for granted that we can do in our daily lives where other people may have to prove that they are entitled to be here in order to do them.

I do not think that the Government convinced many of us in Committee that they really understood this issue. They were still touchingly attached to their idea of giving people a code to get into the Home Office computer, which the person who had to be convinced would then use to see that they could be here. Just spelling that out suggests that there may be some doubts in the Government about their ability to understand how today’s world really works.

There is also the issue of whether the Government could rely on the Home Office computer systems to be working reliably 24/7 for 365 days of the year. I do not know what others’ experience has been but, in the real world, things sometimes go a little awry in the Home Office and not everything works as smoothly as we would like.

My noble friend Lord Oates made the point very well about the risks that now await many of these people in about 18 months’ time. As I recall, in the Conservative Party manifesto there were concerns about the way the criminal justice was struggling, and a need for an independent review of that system. Does it really make a lot of sense to take the risk that, in 18 months’ time, we will criminalise another large number of people who may have to go through that system, which is creaking at the seams? That is the risk that the Government are taking in the way they are going about this exercise.

My Lords, I will speak in support of the amendment, and add my voice to those of other noble Lords who have spoken so well on it. I am sorry that I was not able to be here when the amendment was debated in Committee, which clashed with another public meeting that I had agreed to chair. I am grateful to my noble friend Lord Warner for stepping in and speaking on my behalf. I have, of course, read the report of that debate.

I think that we can agree on two things here. The first is that EU citizens are innocent bystanders in the Brexit battle; this is not a fight of their making. They have made a big contribution to the economic and social well-being of this country. It follows, therefore, that we must take every reasonable step to ensure that they are not disadvantaged by our departure from the European Union. Secondly, the way forward on this issue is entirely in the UK Government’s hands. Agreeing the amendment need not delay Brexit, nor does it require changes to the withdrawal agreement. It is our choice to make.

I fully appreciate that good progress has been made on the application process, but it is a long way from complete and almost certainly it will never be so. In Committee, the Minister said that the Government will take a pragmatic approach to providing a further opportunity to apply for those who have reasonable grounds for missing the deadline. I have no doubt of the Minister’s sincerity on this. However, as the Windrush scandal has shown, pragmatism, good judgment and fairness have not always been strong features of our immigration system—and, as we also know from Windrush, the consequences for those on the wrong side of our system are very serious.

The two changes proposed in the amendment—adopting the declaratory system and providing physical proof—are simple safeguards that do not, as the Government suggest, in any way undermine the applications process that is now under way. They just provide more reassurance and safeguards to those affected.

In the conclusion of Amelia Gentleman’s brilliant book on the Windrush experience, which ought to be required reading for anyone interested in these issues, she talks about her shame, on hearing of the experiences of those affected, that we could treat our citizens so badly. She expresses the hope that the memory of the Windrush scandal will linger and ensure that such extremes of institutional cruelty are never allowed to be repeated. Approving this amendment today is one way that we can act to reduce that possibility.

My Lords, I adopt the wise words of the noble Lords, Lord Oates, Lord Warner and Lord Kerslake, and echo what they said about the danger of rerunning Windrush and about the fallibility of government computer systems, which we have seen in many cases.

I will add only one further point. I had the honour to serve, during the last Session, on your Lordships’ EU Justice Sub-Committee, ably chaired by my noble friend Lady Kennedy of The Shaws. It was a friendly committee and we worked in a consensual way. The committee examined EU citizens’ rights after Brexit, and one of the key concerns that we expressed was precisely that the EU citizen in the UK, for reassurance, needed some physical proof of the fact that they could remain in the UK. Certainly, some of us thought that Ministers, in seeking to justify their position—not pragmatically—seemed just a little uneasy. The committee heard much evidence, both oral and written, from a number of representatives of EU citizens, travelled to two parts of the UK and, importantly, met representatives of all the EU embassies on two occasions. They were able to represent the concerns of their citizens—so it was not, therefore, a capricious conclusion that we reached, but one based very firmly on evidence.

We tried to put ourselves in the shoes of those EU citizens in the UK. Of course, they would be used to ID cards, but some might have a certain hesitation about authorities and would certainly need an assurance, as the Government have said on a number of occasions. Have they had adequate protection? Not in my judgment, because a physical document is necessary to give those citizens confidence. In passing, it would also show that the Government do listen to one of their committees that has researched the project quite thoroughly.

My point, following the noble Lord, Lord Anderson, is that there does need to be supporting digital, because, for example, a government agency from the UK has on occasion questioned the validity of a Portuguese residency card—I have first-hand experience, being resident in Portugal—as being either fraudulently obtained or else open to counterfeit.

My Lords, I venture to suggest to your Lordships that it is sometimes wise to address and solve problems before they occur and to avoid the distress that otherwise would occur. In my nine and a quarter years as Independent Reviewer of Terrorism Legislation, I often stood at border posts, airports and sea ports, watching people being stopped, sometimes for absolutely no reason. But, whether there was a reason or no reason, one saw the shades of emotion of the people who were stopped, ranging from real distress to quiet acquiescence. The advantage of the simple measure suggested in this amendment would avoid the distress; it would mean that speeding through the border post really was quick, and we would solve a problem that is bound to occur if we do not resolve it now.